That Obamacare individual mandate may now be… optional?

Jazz ShawPosted at 8:01 am on February 15, 2017

When is a mandate not a mandate? The answer to that question may turn out to be a bit more tricky than first meets the eye but it’s the new focus of the individual mandate under Obamacare. According to a report which broke last night at Reason Magazine, there has been no change in the law instituted by Congress but the IRS will be turning a blind eye to the question when you file your taxes this year. Assuming this is true, if you refused to purchase healthcare in 2016 in defiance of the law you may not be in for a showdown with the taxman after all.

The health law’s individual mandate requires everyone to either maintain qualifying health coverage or pay a tax penalty, known as a “shared responsibility payment.” The IRS was set to require filers to indicate whether they had maintained coverage in 2016 or paid the penalty by filling out line 61 on their form 1040s. Alternatively, they could claim exemption from the mandate by filing a form 8965.

For most filers, filling out line 61 would be mandatory. The IRS would not accept 1040s unless the coverage box was checked, or the shared responsibility payment noted, or the exemption form included. Otherwise they would be labeled “silent returns” and rejected.

Instead, however, filling out that line will be optional.

Earlier this month, the IRS quietly altered its rules to allow the submission of 1040s with nothing on line 61. The IRS says it still maintains the option to follow up with those who elect not to indicate their coverage status, although it’s not clear what circumstances might trigger a follow up.

Opponents of both the individual and employer mandates (among which I include myself) are no doubt cheering this announcement. I remain of the opinion that these mandates are patently unconstitutional no matter what Supreme Court had to say on the subject. But given the fact that the law still exists and is on the books, is this legal? Our colleague Patterico at Red State finds the proposal to be on dubious legal grounds at best, but beyond that sees this move as a terrible way to approach policy on a couple of levels.

Look: even if all you care about is policy, the fact is that cushioning the blows from this horrible law make it less likely that it will be repealed. And repeal is what is needed. Until there is a free-market solution to health care, we’re on a slow march towards a single-payer system.

But there’s also more to the issue than policy. This goes straight to the nature of our system: will we be ruled by presidents, or kings? In my previous post I quoted Charles C.W. Cooke rejecting the “turnaround is fair play” argument, and I feel the need to do so again.

I’m not sure that I would go so far as to say that such executive actions convey the image of a nation being ruled by kings, but it’s worth noting that traditional small government conservatives should always keep an eye on the executive branch when it chooses to bypass the legislative body in the process of altering laws. The idea that this move makes Obamacare less likely to be repealed doesn’t sit well with me either. First of all, not only the President, but virtually every Republican running for a seat in the House and Senate campaigned on a promise to repeal the law for the past two years. Bailing out on the idea now would be broadly viewed as a complete abandonment by the conservative base. I will grant Patterico the general rule that politicians are lazy and if they can reduce the pain level from an unpopular law it creates a temptation toward inaction, but in this case the outside forces at work will hopefully prevent that.

Returning to the original question, this type of approach by the IRS may not be illegal but it certainly falls in a gray area. Still, we have plenty of examples to draw upon where the government has willfully chosen to turn a blind eye to certain “crimes” either for convenience or lack of resources. The non-enforcement of federal marijuana laws is one situation which immediately comes to mind. So if you fail to check the box on your tax return stating whether or not you carried health insurance or if you admit you did not and the IRS fails to come after you, is someone technically breaking the law or are they simply being negligent in their duties with the approval of the White House?

I’ll leave that one up to the legal eagles in the audience, but for the time being I’m willing to chalk this one up in the win column. These mandates were a terrible idea to begin with and until we can be rid of them through legislative channels perhaps non-enforcement is the best short-term option.